College Sports Council cautions NCAA that Title IX dangers persist

WASHINGTON, D.C. - August 29, 2006 - In a letter to members of the NCAA Executive Committee, the College Sports Council (CSC) is urging the use of interest surveys for both male and female athletes as a way to bring fairness and common sense to the Title IX compliance equation. Pointing to a recently published, independent legal analysis, the letter notes, "schools that conduct surveys will be vastly safer from litigation or federal sanction than those who forego the option."

"Providing sports opportunities based on interest is a simple, fair, and obvious way for schools break free from the widespread practice of limiting male participation," said Eric Pearson, CSC Executive Director. The CSC also sent the letter to Rutgers University and California State University, Fresno, both of which are in the process of cutting men's teams in order to comply with the proportionality prong of Title IX.

Pearson referred to a legal analysis published in the Vanderbilt Journal of Entertainment and Technology Law http://law.vanderbilt.edu/jetl that concludes schools can reduce their exposure to Title IX litigation simply by issuing a survey of student interest.

On March 17, 2005 the Department of Education's Office of Civil Rights first issued a clarification of Title IX's three-part compliance test. Contrary to alarmist rhetoric from gender quota activist groups, surveys must be diligently applied, such as through the student's registration process. So that all students are given the opportunity to express their interests, the CSC has asked that schools permit both male and female students to participate in the surveys as part of their course registration process.

"Schools have not just an opportunity to utilize a better compliance method, but many schools that are not proportional may have a legal responsibility to conduct surveys in order to demonstrate compliance," the letter cautions. "To advise any school to forego a safeguard that is as straightforward as the Department of Education's interest survey would appear to be simply reckless, in many specific cases."

The College Sports Council is a national coalition of coaches, parents, athletes, and former athletes.

University Administrator/General CounselSchools TBD from NCAA Executive Council

Dear Administrator:

It has been over a year now since the U.S. Department of Education (DoEd) issued a new guideline on Title IX compliance, enabling schools to measure student interest in athletics through the use of a DoEd approved survey. As you know, the NCAA has discouraged member institutions from using this new compliance tool, citing efficacy and bias.

However, the College Sports Council (CSC) would like to bring to your attention, a compelling legal analysis published in the Vanderbilt Journal of Entertainment and Technology Law http://law.vanderbilt.edu/jetl. This paper concludes that schools that conduct surveys will be vastly safer from litigation or federal sanction than those who forgo the option. Even if schools aspire to proportionality compliance, having survey results in hand will act as a legal stopgap, if they fall short on that prong.

It is worth noting that the "safe harbor" concept was the very rationale that made proportionality so widespread in the first place. Schools felt that it was the only surefire, measurable compliance method. The survey, as provided by the DoEd, is also measurable and now considered a "safe harbor." Schools have not just an opportunity to utilize a better compliance method, but many schools that are not proportional may have a legal responsibility to conduct surveys in order to demonstrate compliance with one of the other prongs of the three-part test. To advise any school to forego a safeguard that is as straightforward as the DoEd's interest survey would appear to be simply reckless in many specific cases.

Men and women both deserve the opportunity to voice their interest. There is no method that could be more fair and straightforward for students to demonstrate their interest than simply to be asked.

As a new school year begins, we urge you to conduct a survey of athletic interest as part of your course registration process, including both male and female students. The CSC believes that it is both a reasonable way to provide opportunity and a prudent legal course of action.